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Ghanshyam Das Vs. Krishna Gopal Ghosal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 4108 of 1976
Judge
Reported inAIR1979Cal19,83CWN228
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17
AppellantGhanshyam Das
RespondentKrishna Gopal Ghosal
Appellant AdvocateBirendra Kumar Bhowmik, Adv.
Respondent AdvocateSanat Kumar Rakshit, Adv.
Excerpt:
- .....has been allowed.3. in support of the rule mr. bhow-mick has contended that on account of bona fide mistake the 19th instalment could not be deposited in time and it has since been deposited with interest. he submits that the delay in making the deposit may be condoned in the aforesaid circumstances.4. mr. rakshit, appearing for the plaintiff opposite party, contended on the other hand that the provisions of law are clear and unambiguous and in view of the default committed by the defendant there is no escape from the penalty provided in law and the court has no power to extend further the time of deposit or condone the delay in making such deposits.5. under the west bengal premises tenancy act, 1956 certain limitations have been placed on the landlord for obtaining a decree for.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. This Rule is directed against order No. 111 dated 11th Nov., 1976 whereby the plaintiff's petition under Section 17 (3) of the West Bengal Premises Tenancy Act was allowed and the defence against delivery of possession was struck out. It appears that on the petitioner's application under Sec. 17 (2A) Clause (b) the Court by Order No. 14 dated 18-11-69 directed the defendant to deposit the amount of Rs. 347.75 P, in 19 instalments of Rs. 17.38 P every month and last instalment of Rs. 17.53 P. in the following month within July 1971. The petitioner it is alleged in pursuance of the order duly made deposits of 18 instalments but through mistake instead of depositing 19th instalment deposited within the time for 19th instalment Rs. 17.53P as the 20th and last instalment thereby missing the 19th instalment. This mistake was detected by the plaintiff but the defendant deposited on 23-8-71 the amount with interest which was obviously after the due date.

2. The plaintiff thereupon filed a petition under Section 17 (3) for striking out the defence of the defendant on account of his failure to comply with the order dated 18-11-69 and, as already stated, this application has been allowed.

3. In support of the Rule Mr. Bhow-mick has contended that on account of bona fide mistake the 19th instalment could not be deposited in time and it has since been deposited with interest. He submits that the delay in making the deposit may be condoned in the aforesaid circumstances.

4. Mr. Rakshit, appearing for the plaintiff opposite party, contended on the other hand that the provisions of law are clear and unambiguous and in view of the default committed by the defendant there is no escape from the penalty provided in law and the Court has no power to extend further the time of deposit or condone the delay in making such deposits.

5. Under the West Bengal Premises Tenancy Act, 1956 certain limitations have been placed on the landlord for obtaining a decree for eviction. The grounds for eviction provided in Section 13 (1) must be established before the landlord is made entitled to a decree for possession notwithstanding anything to the contrary in any other law. The protection given to the tenant against eviction however is conditional upon his making due payment of rent or complying with the provisions of Section 17 Sub-sections (1) or (2) read with Sub-section (2-A) in default whereof the defence against eviction is to be struck out. It is, therefore, obvious that before a tenant is entitled to the benefits of protection and the right of defending a suit against eviction he has to comply with the conditions imposed by orders passed under the aforesaid provisions. These provisions have been made to ensure that no tenant should be entitled to defend a suit for eviction unless he pays arrear rent as also the amount equivalent to rent every month in accordance with the provisions of the said Act during the hearing of the suit.

6. The Courts however have recognised that there may be instances where for certain bona fide reasons it may not be possible for the tenant to make deposit in time as required in law or un-jder orders of Court. It has been consistently and uniformly held that when such appropriate circumstances exist the delay in making such deposits should be condoned and deposits accepted as being in compliance with law. Where a tenant fails to make a deposit as required and instead makes deposit after due date for no fault of his or for reasons beyond his control or for any other bona fide reason, such lapses have been accepted as being in compliance with the provisions of law or orders passed by courts thereunder.

7. In the instant case, the tenant was required to make deposits of 20 monthly instalments whereof 18 instalments have already been made on due dates and 19th deposit was missed on account of a bona fide mistake. A tenant who has deposited 18 instalments and was required only to deposit two further instalments and, in fact, made the 19th deposit as the 20th instalment can be taken to have made the said deposits by way of bona fide mistake. I have no doubt in my mind that the mistake was a bona fide one and it can never be said to be a deliberate action on his part.

8. Accordingly I am of opinion that in the facts and circumstances of the case wherein the mistake was a bona fide one and not deliberate the deposit of the 19th instalment with interest after the due date is to be taken as being in compliance with the order of the learned Munsif passed on 18-11-69.

9. In the view I have taken, the Rule succeeds and is made absolute. The impugned order is set aside. The suit will now proceed in accordance with law.

10. The petitioner, however, will pay to the learned Advocate for the respondent the costs of this Rule within one week from this date assessed at five gold mohurs.

11. Let the records go down at once and the suit be heard expeditiously.


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